Nwachukwu Iyke Uzoma v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 928/2017

[2018] HKCFI 2151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 928 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong legally on 6 January 2012.  He was married to a Hong Kong resident on 29 January 2012 and therefore applied for a dependant’s visa, which was subsequently cancelled because of the failure of the Applicant to provide sufficient information.  He has since re-married and has made a second such Application.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 23 May 2014.  His NRF claim form was submitted on 3 March 2017.

2.The Applicant attended a screening interview on 28 March 2017.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 21 April 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 4 May 2017.  The adjudicator of the TCAB, Mr Fraser Syme (“the Adjudicator”), heard his appeal on 16 August 2017.  He considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 25 August 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is a Nigerian national and Igbo.  He was born in Port Harcourt.  Between 2001 and 2012, he operated a mobile phone business.  The political situation in Nigeria in around 2011 was volatile and whilst the Applicant was not involved in politics in any way, he witnessed the shootings and other civil upheaval which caused him to flee his home town and live elsewhere prior to arranging to come to Hong Kong.  At no stage was he personally assaulted or injured and he was not the subject of individual persecution.  He fled because of the general violence and the fact that he had met a woman online, whom he intended to marry and who was a resident in Hong Kong.  He did subsequently marry her but they are now divorced.

5.Before the Adjudicator, the Applicant enhanced the basis of his claim to suggest his home had been targeted by military groups looking to forcibly recruit.  One of the Applicant’s former staff and been seeking to locate him to this end.  When he could not locate him, he had taken all of the Applicant’s stock.  His family had urged him not to return and to leave Nigeria.

The non-refoulement claim

6.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii. Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).  Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have the death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

7.It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the Applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

8.As the Applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with.

Decision of the Adjudicator

9.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He noted that the Applicant’s claim on appeal was significantly different to that which he made before the Director.  His explanation for this was the depression he suffered as a result of the breakdown of his first marriage.  Unfortunately for the Applicant, the Adjudicator noted that the breakdown of the first marriage had taken place some five years earlier.  As result, the Adjudicator was not prepared to accept this explanation for omitting this material in his original NRF.  The Applicant’s explanation was not supported by any medical evidence.  In any event, the Applicant was unable to identify the particular military group which he had since sought to suggest had targeted him and his family.  This new basis of claim was rejected in its entirety.  Nevertheless, the Adjudicator considered the state of upheaval in Nigeria at the time of the hearing and the degree of harm any one might be subject to if returned to Nigeria at that time.  He correctly set out the law and key legal principles applicable to the claim including the burden and standard of proof and he applied them.  He accepted that the Applicant, as with the rest of the population of Rivers State, would be the subject of risk of harm but that is one which affects the population as a whole and not the Applicant individually.  That risk in any event would reduce if he relocated to Lagos with a population of 20 million and a large Igbo community.

Leave to apply for judicial review

10.Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11.There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

Dated 2^nd day of November 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1